United States District Court, E.D. Louisiana
ORDER AND REASONS ON MOTION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.
an employment action brought by plaintiff Evelyn
Emperador-Baker against her former employer, Jazz Casino
Company, LLC d/b/a Harrah's New Orleans Casino
(“Harrah's”). Plaintiff's remaining
claims assert sex discrimination, hostile work environment
and constructive discharge in violation of Title VII, 42
U.S.C. § 2000e et seq. Harrah's filed a Motion to
Strike Garry Neil Roark as a Designated Expert. Record Doc.
No. 48. Plaintiff filed a timely memorandum in opposition.
Record Doc. No. 50. Defendant received leave to file a reply
memorandum. Record Doc. Nos. 51, 52, 53. For the following
reasons, IT IS ORDERED that the motion is DENIED.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579, 592-593 (1993), “the Supreme Court explained
that [Fed. R. Evid.] 702 assigns to the district judge a
gatekeeping role to ensure that scientific testimony is both
reliable and relevant.” Johnson v. Arkema,
Inc., 685 F.3d 452, 459 (5th Cir. 2012) (quotation and
citation omitted). “The aim is to exclude expert
testimony based merely on subjective belief or unsupported
speculation.” Johnson v. Big Lots Stores,
Inc., No. 04-3201, 2008 WL 1930681, at *1 (E.D. La. Apr.
29, 2008) (citing Daubert, 509 U.S. at 590).
Plaintiff, as the party offering the expert testimony, bears
the burden of establishing its reliability and relevance by a
preponderance of the evidence. Johnson, 685 F.3d at
qualify as an expert, the witness “must have such
knowledge or experience in [his] field or calling as to make
it appear that his opinion or inference will probably aid the
trier [of fact] in [its] search for truth.” United
States v. Hicks, 389 F.3d 514, 524 (5th Cir. 2004)
(quotation omitted). “As long as some reasonable
indication of qualifications is adduced, the court may admit
the evidence without abdicating its gate-keeping function.
After that, qualifications become an issue for the trier of
fact rather than for the court in its gate-keeping
capacity.” Rushing v. Kan. City S. Ry., 185
F.3d 496, 507 (5th Cir. 1999), superseded in part by
statute on other grounds as noted in Mathis v. Exxon
Corp., 302 F.3d 448, 459 n.16 (5th Cir. 2002).
qualification standard for expert testimony is not stringent,
and so long as the expert is minimally qualified, objections
to the level of the expert's expertise [go] to
credibility and weight, not admissibility.” QBE
Ins. Corp. v. Jorda Enters., Inc., No. 10-21107, 2012 WL
913248, at *3 (S.D. Fla. Mar. 16, 2012) (quotations omitted)
(citing Rushing, 185 F.3d at 507; Clena Invs.,
Inc. v. XL Specialty Ins. Co., No. 10-62028, 2012 WL
266422, at *6 (S.D. Fla. Jan. 30, 2012); Vision I
Homeowners Ass'n, Inc. v. Aspen Specialty Ins. Co.,
674 F.Supp.2d 1321, 1324 (S.D. Fla. 2009); Johnson,
2008 WL 1930681, at *14).
a general rule, questions relating to the bases and sources
of an expert's opinion affect the weight to be
assigned that opinion rather than its admissibility
and should be left for the jury's
consideration.'” Primrose Operating Co. v.
Nat'l Am. Ins. Co., 382 F.3d 546, 562 (5th Cir.
2004) (quoting United States v. 14.38 Acres of Land,
80 F.3d 1074, 1077 (5th Cir. 1996)). As the Supreme Court
noted in Daubert, “‘[v]igorous
cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but
admissible evidence.'” Id. (quoting
14.38 Acres of Land, 80 F.3d at 1078) (internal
district court has considerable discretion to admit or
exclude expert testimony. Gen. Elec. Co. v. Joiner,
522 U.S. 136, 138-39 (1997); Seatrax, Inc. v. Sonbeck
Int'l, Inc., 200 F.3d 358, 371 (5th Cir. 2000).
asserts four basic reasons why Roark should be stricken as an
expert for plaintiff: (1) his report lacks any opinions; (2)
he lacks adequate qualifications to be accepted as an expert;
(3) his report does not contain an adequate methodology; and
(4) his report fails to comply with Fed.R.Civ.P. 26(a). All
of these arguments are unpersuasive.
Roark's opinions and expert conclusions are stated at
pages 2 and 3 of his report. Second, he has adequate
experience and knowledge based on his work history to qualify
as an expert in security procedures in the gaming industry,
which is the subject matter in which his expertise is being
proffered. He is not being proffered, and will not be
accepted, as defendant apparently argues, as an expert
specifically in sexual harassment protocols or an
employer's legal duties regarding sexual harassment.
Harrah's correctly argues that Roark's opinions are
not relevant to its Ellerth/Faragher defense.
However, his opinions are relevant to plaintiffs claim that
Harrah's fostered and permitted a sexually harassing and
hostile work environment by allowing its customers to make
sexually explicit remarks and physical contact with its women
employees, including plaintiff, as a result of its inadequate
security procedures and its instructions to its employees not
to upset customers by complaining about the customers'
sexually harassing actions. Third, Roark's methodology
and the basis for his opinions are adequately described in
his report. He bases his conclusions on his observations
about security practices at Harrah's. Finally,
Roark's report complies adequately with Fed.R.Civ.P.
arguments go principally to the weight, if any, that
the jury should assign to Roark's testimony. Those
positions are properly expressed through cross-examination of
Roark at trial, not through his exclusion as a witness. For
all of the foregoing reasons, IT IS ORDERED that